Shop, Distributive and Allied Employees’ Association and Bernie Smith v Secretary, NSW Treasury [2018] NSWCATAP 84

Shop, Distributive and Allied Employees’ Association and Bernie Smith v Secretary, NSW Treasury [2018] NSWCATAP 84

The transitional provisions of the Retail Trading Act 2008, as amended, applied to maintain existing exemptions granted under the previous Act; those exemptions were not subject to the three-year limitation introduced by the 2009 amendments, as they were not 'granted' after commencement but 'taken to be' exempted upon commencement. Accordingly, the exemption for Bega shops continued in force. Furthermore, only a representative of an industrial organisation, not the organisation itself, has standing to bring proceedings under section 12(4) of the Act.

Jurisdiction
Australia
Judgment Date
11 April 2018
Procedural Posture
Appeal / Decision on Appeal
Outcome
appeal dismissed
Legal Topics
['retail Trading Act Exemptions' 'transitional Provisions' 'shop Trading Restrictions' 'standing to Appeal']
['administrative Law' 'statutory Interpretation'] ['retail Trading Act Exemptions' 'transitional Provisions' 'shop Trading Restrictions' 'standing to Appeal']

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Procedural Posture

Appeal / Decision on Appeal

Legal Issues

  1. 1 ['Whether exemptions granted under previous legislation continued after amendments imposing a three-year time limit' 'Interpretation of transitional provisions with respect to pre-existing exemptions under the Shops and Industries Act 1962' "Standing of the Shop, Distributive and Allied Employees' Association to bring proceedings"]

Ratio Decidendi

The transitional provisions of the Retail Trading Act 2008, as amended, applied to maintain existing exemptions granted under the previous Act; those exemptions were not subject to the three-year limitation introduced by the 2009 amendments, as they were not 'granted' after commencement but 'taken to be' exempted upon commencement. Accordingly, the exemption for Bega shops continued in force. Furthermore, only a representative of an industrial organisation, not the organisation itself, has standing to bring proceedings under section 12(4) of the Act.

Court Disposition

appeal dismissed

Orders

  • ['The appeal is dismissed.']